Lepore v. AO Smith Corp. (2017)

Our plain-English summary of Lepore v. AO Smith Corp. (Rhode Island Superior Court, May 10, 2017).

Carol Lepore sued, individually and for the estate of her husband Leonard Lepore, who she says developed malignant mesothelioma from asbestos exposure and died in late 2012. He was a sheet metal worker for a subcontractor who removed and installed ductwork at buildings on the campuses of Rhode Island Hospital and The Miriam Hospital in the 1960s and 1970s. She alleges he was exposed to asbestos insulation in walls and ceilings and to products brought in by other workers. This decision dealt only with discovery. The hospitals asked for a protective order to narrow her corporate-representative deposition notices. The court found all her topics relevant but limited several to buildings that existed during his work years, 1960-1987, and limited questions about employee knowledge to people with authority to act on asbestos hazards. It did not limit questions about other asbestos claims against the hospitals. It also allowed questions about later asbestos removal, ruling that such evidence is admissible as a subsequent remedial measure under Rhode Island Rule of Evidence 407, given the long latency of asbestos illness. The motion was granted in part and denied in part.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Rhode Island Superior Court
• Decided: May 10, 2017
• Stage: Discovery or evidence ruling
• State: Rhode Island

Outcome. The court partly granted the hospital defendants' motion for a protective order, limiting some deposition topics to buildings existing in 1960-1987, but denied it as to discovery of later asbestos removal, which the plaintiff may pursue without a time limit.

What the court held. A court may limit discovery under Rule 26 to avoid undue burden, but evidence of later asbestos removal is discoverable and admissible as a subsequent remedial measure under Rule 407, with no knowledge requirement and allowing for the latency of asbestos disease.

Issues decided: Premises Owner Liability, Trial Procedure and Discovery.

The people and their exposure

• Leonard L. Lepore: mesothelioma; died

Who	Work	Where	When	Products
Leonard L. Lepore	sheet metal worker (construction)	Rhode Island Hospital and The Miriam Hospital campuses, Rhode Island	1960s and 1970s	pipe and block insulation

The defendants

• Rhode Island Hospital (premises owner)
• The Miriam Hospital (premises owner)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

CAROL A. LEPORE, Individually and as Legal Representative for the Estate of LEONARD L.

LEPORE, Plaintiff,

v.

A.O. SMITH CORP., etal., Defendants.

C.A. No. PC-2012-1469.

Filed: May 10, 2017.

Superior Court of Rhode Island, PROVIDENCE, SC.

Vincent L. Greene, IV, Esq., Robert J. McConnell, Esq., Donald A. Migliori, Esq., For Plaintiff.

Mark P. Dolan, Esq., Andrew R. McConville, Esq., For Defendant.

DECISION

GIBNEY, P.J.

Defendants Rhode Island Hospital and The Miriam Hospital (collectively, Defendants) bring a motion for a protective order in response to Plaintiff, Carol A. Lepore's (Plaintiff), Super. R. Civ. P. 30(b)(6) (Rule 30(b)(6)) deposition notice. The Defendants contend that the scope of the deposition is overly broad and unduly burdensome and that such a deposition should be limited according to a previous order of the Court. The Plaintiff contends that the scope of the deposition should not be so limited according to a decision which was published approximately three years ago. The Plaintiff also maintains that she is entitled to inquire about subsequent remedial measures in said deposition according to Rhode Island Rule of Evidence 407. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

I

Facts and Travel

During the 1960s and 1970s, Leonard L. Lepore was a sheet metal worker with Delix Weigand & Son. Although not employed directly by the Defendants, Mr. Lepore removed and installed ductwork at various hospital buildings on Defendants' campuses as a subcontractor that was hired by the general contractors. The Defendants hired the general contractors directly. The Plaintiff alleges that while Mr. Lepore was working at the hospitals, he was exposed to asbestos from insulation in the walls and ceilings of Defendants' buildings, as well as from products that other workers, hired by Defendants, brought into Mr. Lepore's work area. The Plaintiff claims that as a result of this work and asbestos exposure, Mr. Lepore contracted malignant mesothelioma and later died in late 2012.

In 2014, the Plaintiff brought a motion for permission to propound interrogatories in excess of thirty, pursuant to Super. R. Civ. P. 33(b), and a motion to compel further discovery responses from Defendants, pursuant to Super. R. Civ. P. 37(a)(2). In those discovery requests, the Plaintiff sought to determine whether and when Defendants became aware of both the presence of asbestos in the Defendants' hospitals and of the health hazards associated with inhaling asbestos fibers. The Defendants objected to both motions, contending that the requests were overly broad and unduly burdensome because their scope was unlimited. Accordingly, this Court issued its decision on May 23, 2014, in which it limited the scope and timeframe of the discovery requests. The Court found that the Plaintiff's requested information was critical to her claims, but that the discovery should be limited to the timeframe that Mr. Lepore worked at the hospitals and to the buildings that were in existence at the time of that employment. Ultimately, the Plaintiff and Defendants agreed to a relevant timeframe of 1960-1987.

The Plaintiff has now served Rule 30(b)(6) deposition notices to the Defendants, along with Schedules A and Exhibits A attached[1], which identify relevant subject matters and request the production of documents. In response, Defendants

object and request a protective order from the Court. The Defendants ask that the Court apply its previous 2014 decision to the Rule 30(b)(6) depositions in order to limit the scope and timeframe of the depositions to the years during which Mr. Lepore worked at the hospitals and to the buildings in existence at that time.

II

Parties' Arguments

The Defendants contend that the Court's previous 2014 decision should apply to the current Rule 30(b)(6) depositions because to allow otherwise would constitute an unduly broad and burdensome discovery request. The Defendants maintain that the Plaintiff's Rule 30(b)(6) deposition notices identify sixteen subject matter topics and include a twenty-two-part document request that largely mirrors the Plaintiff's written discovery requests that were the subject of the 2014 decision. The Defendant contends that such a request constitutes an attempt to circumvent the Court's 2014 decision. The Plaintiff contends that the Court's 2014 decision applied specifically to Plaintiff's previous discovery requests; namely, Plaintiff's second and third sets of supplemental interrogatories and the Plaintiff's second, third, and fourth sets of requests for production of documents. The Plaintiff argues that the Court did not prospectively apply the decision to future depositions. The Plaintiff maintains that—even if the Court were to reapply its decision to the current discovery matter—the Plaintiff is entitled to inquire about subsequent remedial measures. Since such evidence is admissible under the Rhode Island Rules of Evidence, the Plaintiff argues that it should be allowed to inquire into the Defendants' knowledge or actions relating to asbestos removal which occurred outside of the previously permitted 1960-1987 timeframe.

III

Standard of Review

The trial court is afforded broad discretion in handling discovery requests. Pastore v. Samson, 900 A.2d 1067, 1073-74 (R.I. 2006) (citing Cullen v. Town Council of Lincoln, 850 A.2d 900, 903 (R.I. 2004)). Rhode Island Rule of Civil Procedure 26(b) (1) states that, in general, the scope of discovery should be limited to matters "relevant to the subject matter involved in the pending action[.]" Super. R. Civ. P. 26(b)(1). Rule 26(c) of the Superior Court Rules of Civil Procedure permits the Court to issue "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . ." Super. R. Civ. P. 26(c).

A party seeking a protective order in a discovery matter must include certification that the movant has in good faith conferred with other affected parties in an effort to resolve a dispute prior to bringing a motion before the Court. See Super. R. Civ. P. 26(c). Finally, Super. R. Civ. P. 26(c) provides that, "[i]n ruling on a motion for a protective order the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery." As with all our Rules of Civil Procedure, Super. R. Civ. P. 26(c) should always be "construed and administered to secure the just, speedy, and inexpensive determination of every action." Super. R. Civ. P. 1; Martin v. Howard, 784 A.2d 291, 296 (R.I. 2001). IV

Analysis

The Defendants contend that the Court's previous 2014 decision limiting the scope of discovery should be applied to the Plaintiff's Rule 30(b)(6) depositions. In that decision, the Court limited the discovery to the years before and during the period that Mr. Lepore worked at the hospitals from 1960-1987. The Court also limited discovery to the buildings that were in existence at the time of Mr. Lepore's employment. Alternatively, the Plaintiff contends that the Court's previous decision was not intended to apply prospectively to the Rule 30(b)(6) depositions. Additionally, the Plaintiff contends that it should be able to inquire and request documents relating to the Defendants' eventual removal of asbestos, which likely occurred after the time period of Mr. Lepore's employment and outside the 1960-1987 timeframe that the Court previously authorized. The

Plaintiff maintains that such discovery is permitted since it is admissible as a subsequent remedial measure under Rhode Island Rule of Evidence 407.

Rhode Island Rule of Civil Procedure 26(b) (Rule 26(b)) provides that the Court may limit "[t]he frequency or extent" of a party's discovery requests if those requests are "unreasonably cumulative or duplicative, or [are] obtainable from some other source that is more convenient, less burdensome, or less expensive[.]" Rule 26(b). The Court may also take into account the "needs of the case, the amount in controversy, the parties' resources, and the importance of the issues at stake in the litigation." See id. Super. R. Civ. P. 26(c) enables the Court, upon a motion, to protect a party from undue burden or expense by ordering "[t]hat the disclosure or discovery not be had[,]" that the disclosure be had only on specified terms, "[t]hat certain matters not be inquired into," or that the scope of the disclosure "be limited to certain matters."

A

Scope of Discovery Requests

Schedule A outlines sixteen topics that the Plaintiff intends to raise in the Rule 30(b)(6) depositions of Defendants' witnesses. In Exhibit A, the Plaintiff further lists twenty-two document requests that she asks be provided at least ten days prior to the depositions. The Court finds that all topics contained in Schedule A and Exhibit A are relevant to the Plaintiff's prima facie case against the Defendants since, at trial, she must show that the Defendants knew or reasonably should have known that asbestos was hazardous to human health, and that there was asbestos on their properties in the areas and buildings that Mr. Lepore worked. See Kelley v. Cowesett Hills Assocs., 768 A.2d 425 (R.I. 2001) (evaluating sufficiency of plaintiff's prima facie claims in a negligence/asbestos action); see also Lindquist v. Buffalo Pumps, Inc., No. PC-06-2416, 2006 WL 3456346, at [*2] (R.I. Super. Nov. 28, 2006) (Gibney, P.J.). Thus, the topics outlined in Schedule A and Exhibit A are crafted to obtain relevant information central to the Plaintiff's claims and are, therefore, appropriate for discovery. See Rule 26(b).

However, the Court notes that the topics included in Schedule A and Exhibit A largely mirror the topics that were the subject of the Court's 2014 decision. After careful consideration of any possible undue burden or expense, the needs of the case, and the parties' resources, the Court places the following limitations on the scope of discovery. See Rule 26(b). With respect to Plaintiff's Schedule A and topic numbers 3, 4, 10, 11, and 12, the Court will limit the Plaintiff's questioning to buildings that were in existence during the time period of Mr. Lepore's employment, previously identified as 1960-1987. With respect to Plaintiff's Exhibit A, the Court will similarly limit topic numbers 2, 3, 4, and 8.

The Court finds that in light of the factors outlined in Rule 26(b), such a limit will properly narrow the scope of the Rule 30(b) (6) deposition to relevant matters that are reasonably calculated to lead to the discovery of admissible evidence. See Rule 26(b); see also Smith v. Cafe Asia, 256 F.R.D. 247, 256 (D.D.C. 2009) (finding a discovery request overly broad where it sought irrelevant information regarding events that occurred outside the timeframe of the events central to the suit); Sadofsky v. Fiesta Prods., LLC, 252 F.R.D. 143, 152 (E.D.N.Y. 2008) (reviewing discovery request to determine if reasonably calculated to lead to admissible evidence relevant to the claims asserted).

In Plaintiff's Schedule A topic number 6, she requests information related to the name and address of any professional, trade, hygiene, foundation, or organization of which the Defendants or any "employee, agent, engineer, or industrial hygienist in Defendant[s'] employ has ever been a member." Additionally, in Schedule A topic number 7, the Plaintiff requests information regarding Defendants' review, understanding, or retention of any industrial hygiene publications, articles, etc. related to the adverse health effects of asbestos exposure. The Court notes that the Plaintiff is likely inquiring into such matters in an effort to determine whether and when the Defendants knew or should have known about the hazards of asbestos. However, as the Court noted in its 2014 decision and its review of a similar interrogatory request, such information held by a low-level employee is likely not imputable to Defendants, and thus, the Court will limit such an inquiry to employees or agents that had authority to take action with respect to asbestos hazards. See U.S. v. Ladish Malting Co., 135 F.3d 484, 493 (7th Cir. 1998) (finding that a corporation is deemed to have knowledge of hazards when such "knowledge [is] possessed by persons authorized to do something about what they know"). The Court will further limit Plaintiff's Schedule A topic numbers 6 and 7 to the years before or during Mr. Lepore's work at the hospitals, since Defendants' employees' knowledge of asbestos hazards is only relevant if such knowledge predated Mr. Lepore's departure in 1987.[2]

However, the Court will not place any building or time period limitation on the Plaintiff's remaining topic numbers in either Schedule A or Exhibit A, unless specifically noted supra. As such, this Court will allow the Plaintiff to inquire in a Rule 30(b) (6) deposition as to any other claims filed against the Defendants regarding asbestos exposure or asbestos-related illness; the Court will not place any time or building limit on Plaintiff's Schedule A topic number 14, as well as on Exhibit A topic numbers 10 and 11, since such questioning is relevant and likely to lead to the discovery of admissible evidence.[3] See Callahan v. Nystedt, 641 A.2d 58, 60 (R.I. 1994). The Court will allow questioning on these topic numbers outside the previously identified timeframe because such inquiries could lead to the discovery of other witnesses who were allegedly exposed to asbestos during the same period as Mr. Lepore; the Court is cognizant of the fact that asbestos-related illnesses often do not manifest until years or decades after exposure, and thus, the Court will not limit the scope of such questions. B

Subsequent Remedial Measures

The Defendants contend that—in addition to the limitations discussed supra—the Plaintiff should be prevented from inquiring about the removal of asbestos from Defendants' properties. While the Defendants recognize that subsequent remedial measures are admissible in Rhode Island, the Defendants argue that the Plaintiff should not be allowed to inquire about asbestos-abatement procedures in this case because any removal was unrelated to the filing of Mr. Lepore's claims. The Defendants argue that any removal occurred too remotely to either Mr. Lepore's exposure or to the filing of his claim to be admissible as a subsequent remedial measure under Rhode Island law. The Plaintiff contends that the removal of asbestos is admissible as a subsequent remedial measure in Rhode Island and the gap in time between exposure and removal is expected considering the latent nature of asbestos-related illnesses.

Rhode Island Rule of Evidence 407 (Rule 407) states that "[w]hen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is admissible." The Rhode Island Supreme Court has recently defined "event" in this context as the "liability-causing conduct, not the eventual litigation itself." See DeCurtis v. Visconti, Boren & Campbell, Ltd., 152 A.3d 413, 421-22 (R.I. 2017). Additionally, the Supreme Court declined to hold that the controlling "event" for Rule 407 is predicated on the actual knowledge of the tortfeasor. See id. at 422 (citing Doe v. Johnston, 476 N.W.2d 28, 34 (Iowa 1991)).

The Defendants point to Kurczy v. St. Joseph Veterans Ass'n, Inc., 820 A.2d 929, 943 (R.I. 2003) to argue that—although subsequent remedial measures are admissible in Rhode Island—any remedial measure must be sufficiently close in time to the liability-causing event to be relevant and thus admissible. In Kurczy, the Supreme Court held that evidence of the defendant's addition of warning signs to an open stairwell was inadmissible because the warning signs were added seven years after the liability-causing fall of the plaintiff's son. See id. However, the Court did not prohibit the plaintiff from asking witnesses about the absence of warning signs on the night in question. See id.

While this Court recognizes the significance of a timeliness consideration when reviewing the admissibility of subsequent remedial measures, this Court remains aware of the unique nature and latency of asbestos-related illnesses. As discussed supra, asbestos-related illnesses often do not manifest until years or even decades after exposure, which, in this case, is the liability-causing event. As the Supreme Court stated, there is no knowledge component or requirement under Rule 407. See DeCurtis, 152 A.3d at 422. Thus, the Plaintiff need not demonstrate that Defendants were aware of the liability-causing event before removing the hazard; such evidence of removal is admissible so long as the Plaintiff can meet the requirements of Rule 407 by demonstrating that if removal measures had been taken previously, the liability-causing injury would have been less likely to occur. See id.; see also Rule 407. Therefore, evidence of the subsequent removal or abatement of asbestos at the Defendants' properties is admissible under Rule 407. See DeCurtis, 152 A.3d at 422; Kurczy, 820 A.3d at 943.

Since the Plaintiff's inquiries into the subsequent removal or abatement of asbestos from the Defendants' properties are reasonably calculated to lead to the discovery of admissible evidence, the Court will permit such questions, without limiting discovery to any particular timeframe. See Rule 26(b); see also Sadofsky, 252 F.R.D. at 152. Specifically, Plaintiff's Schedule A topic number 16 and Exhibit A topic numbers 5, 6, 7, and 22 are allowed and will not be restricted to the previously identified timeframe of 1960-1987.

V

Conclusion

This Court grants Defendants' motion for protective order, in part, and denies the Defendants' motion with respect to the discovery of subsequent remedial measures under Rule 407. Counsel shall submit the appropriate order for entry. [1] The Plaintiff has provided a notice of Rule 30(b)(6) deposition to each Defendant individually and has attached an identical Schedule A and Exhibit A document to each notice. Therefore, the Court will hereinafter refer to these attached documents in the singular as "Schedule A and Exhibit A" and its decision will be applied identically to both Defendants.

[2] Additionally, with respect to Plaintiff's Schedule A topic number 6 and Exhibit A topic number 13—that relate to health, safety, and industrial hygiene memberships or documents—the Court will restrict such questioning to asbestos and asbestos-related health hazards. [3] These topic numbers regard the filing of asbestos-related worker's compensation claims, non-litigated complaints, or lawsuits filed against Defendants regarding asbestos exposure, and the Plaintiff does not limit such topics by time period or building.

Sources

• The opinion on Google Scholar
• Rhode Island asbestos laws
• Rhode Island asbestos exposure sites